tion of the army and navy,1 for the purpose, among others, of securing the execution of the laws. The occasions upon which the President may use the forces are not expressly enumerated in the constitution. He is therefore left to determine, in first instance, when the security and welfare of the state demand the use of such means. 4. The constitution impliedly empowers the President to make the ordinances needed for the execution of the laws, in so far as the legislature shall not have made them. The constitutional provision which declares him the administrative head of the Republic, and authorizes and requires him to execute the laws, of course empowers him to issue instructions and orders to the officials. By the constitutional power to make executive ordinances, however, I mean quite another thing. I mean the power so to supplement the acts of the legislature as to render them capable of execution. This involves the power to bind the common subject by executive orders for which no specific authority can be found in the legislative act.2 Of course, the President must not make use of this power to frustrate the purposes of the legislature in the enactment of the law, and his ordinance must not violate any other law. Within this limitation, however, he is free to act under his constitutional prerogative. In making this statement concerning the power of the French President, I have deferred to the teachings of the commentators in reference to the practice of the administration. My own opinion is that the written constitution of the French Republic does not confer any such power upon the President. I cannot find it expressed anywhere in the text, and I deny that it is a necessary implication from the duty to execute the laws. If, when the legislature enacts a 1 Loi constitutionnelle du 25 février, 1875, Art. 3, § 3. 2 St. Girons, Manuel de droit constitutionnel, p. 379; Lebon, Das Staatsrecht der französischen Republik, S. 50. 8 Ibid. S. 50. law, it neither makes the provisions necessary for the execu tion of the law nor empowers the President to make them, the President can leave the law unexecuted until the necessary measures receive the approval of the legislature. We, in America, not only know this to be practicable, but we generally believe that any other procedure would be dangerous to liberty and constitutional government. This power of the President is sanctioned by Article 471, § 15, of the Code pénal, which inflicts a fine of from one to five francs for disobedience to the ordinances of the administration. It is not sanctioned anywhere else or in any other way. Now the Code pénal is not a part of the constitution. It is a statute. It seems to me, therefore, that this general power of the President to make ordinances in execution of laws rests upon a general statute empowering him thereto, and not upon the constitution. But even if it be admitted that this sphere of power is granted by the constitution to the President, yet if the legislature be empowered to oust the President from this sphere at will, the power of the President is tantamount only to a power conferred by a general permissive statute. Now, nobody doubts that the French legislature has the power to make every ordinance for the execution of the laws, if it will. It is, therefore, only by its implied permission that the Presi dent can act in this sphere at all. It seems to me that the commentators are laboring under the influence of the royal and imperial traditions when they interpret the present constitution as vesting in the President the power to make ordinances for the execution of the laws. IV. Powers of the President in Judicial Administration. I. The constitution confers upon the President the power to constitute the Senate as a court of justice for the purpose of trying any person accused of an attentat against the security of the state. It follows from this language, that 1 Loi constitutionnelle du 16 juillet, 1875, Art. 12, § 3. the court so constituted can sit in judgment upon the highest officials of the government, the President included. 2. The constitution confers upon the President the power to pardon any person sentenced by any criminal or police court in France. He may, therefore, pardon the ministers. themselves against the judgments of the Senate, as a court of justice. His power to pardon, i.e. to remit penalties, includes, of course, the power to commute penalties into milder punishments, and the power to reprieve, i.e. to suspend the execution of the sentence. He is not, however, empowered by the constitution to issue an amnesty, i.e. a relief against all the civil and political results of the conviction. This, according to the constitution, only the legislature can do.1 The legislature, however, may make a pardon granted by the President equal to an amnesty, by a vote to that effect. V. The Ministers of the President. All the powers of the President must be exercised through the Ministry or a minister. He must appoint and dismiss the members of the Council of State in the Council of Ministers; 2 he must declare his resolution to call the Senate as a court of justice in the Ministerial Council;3 and his every act must be countersigned by a minister. It is thus that the executive and administrative power is made responsible at every point to the legislature, and yet the President himself made irresponsible, except only in case of commission of high treason. The constitution pronounces this principle in the following language: "The ministers are collectively responsible to the chambers for the general policy of the administration, and individually responsible for their own personal acts." 5 1 Loi constitutionnelle du 25 février, 1875, Art. 3, § 2. 2 Ibid. Art. 4, §§ 1 & 2. 8 Loi constitutionnelle du 16 juillet, 1875, Art. 12, § 3. 4 Loi constitutionnelle du 25 février, 1875, Art. 3, § 6. Nominally, the ministers are appointed and dismissed by the President, and, so far as the constitution is concerned, at his pleasure. The constitution does not even fix a qualifica tion or a disqualification for the holding of these high offices. It is implied, of course, that the ministers shall be French citizens in full enjoyment of civil and political rights; and it is the practice to take them from the ranks of the majority party in the Chamber of Deputies. They have seats and voices in the Council of State. This latter body is the privy council of the President, and its members are appointed and dismissed by him at pleasure, under the single constitutional requirement that these acts shall be done in the Council of the Ministers. The ministers may be members of the legis lature; generally they are. Whether they are or not, they have free access to the chambers, and must be heard whenever they demand it. They are the heads of the various administrative departments, and the President can issue no command except through one of them. Their responsibility is twofold, viz; political and criminal. Their political responsibility is also twofold, viz; joint and single, i.e. the responsibility of the Ministry and the responsibility of each minister. The first attaches in all cases of general policy, the latter in all cases of individual activity. Their political responsibility is enforced in both cases by their dismissal from office. The constitution does not expressly command the President to dismiss the Ministry or a minister upon a vote of distrust, general or particular, or upon the refusal of the legislature to adopt projects of law laid before them by the Ministry or a minister, and declared to be vital to the administration; much less does it require this when the vote of distrust or the refusal to adopt ministerial projects is confined to the Chamber of Deputies; but the constitution puts the Chamber of Deputies in possession of the means to bring about this result. The power of this chamber over the budget enables it to block the entire activ ity of the government in case the latter should undertake to act out of accord with the majority in the Chamber. The mere resignation or even dismissal of the ministers is not connected with any other penalty, not even with the political penalty of disqualification to hold office again. The criminal responsibility of the ministers, on the other hand, must be individual in every case, and is enforced by such penalties as the Senate may see fit to inflict in each case. The provision of the constitution in reference to this subject reads: "The ministers may be placed in accusation by the Chamber of Deputies for crimes committed in the exercise of their functions. In this case they are tried by the Senate." 1 It is clear from the language of the constitution that the ministers cannot be arraigned and tried in this manner for any crime which they may commit as private persons. As private persons they are subject to the jurisdiction of the ordinary courts, and to this jurisdiction only. It is only for crimes committed in the exercise of their ministerial functions that they can be made subject to this extraordinary jurisdiction by bill of attainder.2 As to what shall constitute crime committed by a minister in the exercise of his functions, the constitution is silent. The definition of crime contained in the Code pénal, or rather the catalogue of crimes enumerated in the Code pénal is evidently too narrow for the meaning of the word as here employed. The commentator Lebon adopts Brisson's definition of the term crime in this connection, vis; the violation of any law.3 This seems to me to present the true view, although I think it is left by the constitution to the Senate to determine in each case whether what has been done amounts to a crime or not. 1 Loi constitutionnelle du 16 juillet, 1875, Art. 12, § 2. 2 Lebon, Das Staatsrecht der französischen Republik, S. 55. |